Capri Beachwear, Inc. v. AAA Stretch, Inc.

49 A.D.2d 831, 374 N.Y.S.2d 2, 1975 N.Y. App. Div. LEXIS 10965

Opinion

Order, Supreme Court, New York County, entered December 11, 1974, denying defendant’s motion to strike the note of issue, unanimously reversed, on the law and the facts, and the note of issue stricken. Appellant shall recover of respondent $40 costs and disbursements of this appeal. Order, Supreme Court, New York County, entered March 19, 1975, directing the defendant by one Kamp to submit for examination before trial, unanimously reversed, on the law and the facts, and the motion denied, without costs and without disbursements. The plaintiff filed a statement of readiness and a note of issue, and the defendant moved to strike on the ground that the pretrial procedures the defendant was conducting of the plaintiff had not been concluded. That the matter was not yet ready to be tried was demonstrated when the case went to trial and a mistrial was declared. The plaintiff, however, having filed its statement of readiness and note of issue, in the absence of unusual circumstances is barred from further pretrial proceedings. (See Price v Brody, 7 AD2d 204; Morrison v Sam Snead Schools of Golf of N. Y., 13 AD2d 986.) Concur—Kupferman, J. P., Murphy, Lupiano, Capozzoli and Lane, JJ.